The Kogi conundrum

The death on 22 November of Abubakar Audu, the All Progressives Congress (APC) governorship candidate for Kogi State, a day after the (s)election in the state, has resulted in a legal minefield.

The electoral commission, INEC, declared the results of the (s)election as “inconclusive” due to irregularities in 91 polling units (49,953 votes). But Audu was leading his opponent, the incumbent governor Idris Wada of the Peoples Democratic Party (PDP), by 240,867 to 199,514 votes. The margin of the deceased’s lead was less than the marred votes in the 91 polling units, so Audu couldn’t be declared the winner.

Nigerian law did not foresee this situation. The constitution holds in Section 181(1): “If a person duly elected as Governor dies before taking and subscribing the Oath of Allegiance and oath of office, or is unable for any reason whatsoever to be sworn in, the person elected with him as Deputy governor shall be sworn in as Governor and he shall nominate a new Deputy-Governor who shall be appointed by the Governor with the approval of a simple majority of the House of Assembly of the State.”

The problem with this is that Audu had not been “duly elected” before he died.

The Electoral Act deals with what happens if a candidate dies before the election in Section 36(1): “If after the time for the delivery of nomination paper and before the commencement of the poll, a nominated candidate dies, the Chief National Electoral Commissioner or the Resident Electoral Commissioner shall, being satisfied of the fact of the death, countermand the poll in which the deceased candidate was to participate and the Commission shall appoint some other convenient date for the election within 14 days.”

However, Audu died after the election, so this should not apply.

INEC have gone ahead and issued a notice for a supplementary election to be held in the 91 polling units on 5 December and asked the APC to nominate a replacement for the deceased candidate.

This is a view supported by the Attorney General of the Federation Abubakar Malami: “The issue is very straightforward. Fundamentally, section 33 of the Electoral Act is very clear‎ that in case of death, the right for substitution by political a political party is sustained by the provisions of section 33 of the Electoral Act.

“And if you have a community reading of that section with section 221 of the constitution which clearly indicates that the right to vote is the right of a political party and the party in this case, the APC has participated in the conduct of the election.

“It is therefore apparent that ‎the combination community reading of the two provisions does not leave any room for conjecture.

“APC as a party is entitled to substitution by the clear provisions of section 33 of the Electoral Act.

“Also section 221 of the Constitution is clear that the votes that were cast were cast in favour of the APC.

“Arising from that deduction, it does not require any legal interpretation.

“The interpretation is clear, APC will substitute, which right has been sustained by section 33 of the Electoral Act. So be it.
“The supplementary election has to be conducted along the line.’’

The Attorney-General has misinterpreted Section 33: “A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 32 of this Act, except in the case of death or withdrawal by the candidate.”
Section 33 is in “pursuant to Section 32” which deals with nomination of candidates and not candidates after votes have been cast.

The Attorney-General is also wrong, “community reading” or otherwise, that Section 221 allows the APC to use the votes for Audu for a substitute candidate because the votes were cast for the party. Section 221 states: “No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.”

Malami’s misinterpretation of this provision is woeful, dubious and shocking. It does not mean votes belong to the party. Sections 176-179 of the Constitution are quite clear that votes for governor are cast for a candidate. It makes no reference to the winner being the party that polled the most votes. The winner is the candidate with the most votes. While candidates are required to run on the platform of parties, the votes are cast for candidates and not the parties.

INEC would be going beyond the boundaries of the law if they hold a supplementary election on 5 December with a replacement APC candidate and proceed to give that person the 240,867 valid votes already cast for Audu.

That decision is likely to be challenged by the PDP and Audu’s running mate James Faleke. His counsel Wale Olanipekun claimed: “In law and logic, no new candidate can inherit or be a beneficiary of the votes already cast, counted and declared by INEC before that candidate was nominated and purportedly sponsored. “Assuming without conceding that INEC is even right to order a supplementary election, the votes already cast, counted and declared on Saturday, 25th November 2015, were votes for the joint constitutional ticket of Prince Abubakar Audu and our client. Therefore, no new or ‘supplementary’ candidate can hijack, aggregate, appropriate or inherit the said votes.”

Section 141 of the Electoral Act also states that: “An election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of such election.” So there is no way a new candidate can gain in a supplementary election from votes cast for Audu.

This is a case that would most likely end up in the Supreme Court, especially as it deals with a scenario not covered by law.

Where the letter of the law does not cover the circumstances, the Supreme Court is very likely to look at the spirit of the law. This means examining the intent of those who drafted the law. The most important or “supreme law” here is the constitution. The constitution holds that where a candidate is duly elected and dies before taking office, his running mate should take over.

The Kogi situation in which nearly 90% of the (s)election was concluded, with Audu leading, should in the spirit of the law, mean that his running mate James Faleke be declared the governor-elect and be sworn-in as governor in due course.

Any other outcome would fly in the face of the law and natural justice.

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